tv Knight Institute v. Trump Oral Argument CSPAN March 29, 2019 2:11am-2:56am EDT
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president trump uses twitter and his practice of blocking some users from reading his personal twitter account. the u.s. district court ruled against the president on first amendment grounds. -- is inl is against front of the second circuit. they heard oral argument on the case on tuesday. this is 40 minutes. >> good morning. please be seated. we will hear argument in night versus donald j. trump. >> good morning. issue is a twitter account created by donald trump of 40
before he became president that he has control over independent of his presidency. on his right to block people that account, and ability he shares in common with all twitter users. >> are you arguing that the only thing independent of his presidency is the blocking? or the account itself? >> the blocking. to analyzee trying whether or not state action or government action is being invoked, you look at the particular conduct at issue. you ask whether it is wielding the power of the government, or authority that has
been given to the defendant by virtue of their office. >> this twitter account is a designated forum, then? >> no. >> is a public forum? onlyou claiming the private action he took was the blocking of these people? is the twitter account a public forum? >> no. that goes to the second critical error by the district court here. we believe that the state actions question, whether blocking itself is government authority, is a question that should be addressed before the public form. if there is no state action, there can't be a first amendment violation. the constitution does not prohibit private parties from engaging in conduct that inhibits conduct. all ofour argument that this is action by -- it's a private party? because if you are asking that, it's curious to me that the
department of justice is here representing a private entity. it's the trump -- department's policy to defend public officials, federal officials who are sued in their official capacity. we contend that the plaintiffs are incorrect when they suggest that this was something that donald trump in his official capacity. donald trump has had the ability to block anyone from this account since long before his presidency. this is not an authority that he is willing by virtue of his office. so -- >> in the last few days, he has had tweets where he revoked the north korean sanctions. proclamation -- it was a video. it was on the golan heights. israel having sovereignty over that area.
the announcement of appointed to the federal reserve board. the washington capitals celebration in the white house for winning the stanley cup. those artificial actions? that are not contending these are federal official statements. he can see that there are statements that are certainly official statements. >> you are not contesting that he's not doing that? >> there are official statements that are made on the account. the government has conceded that in many different cases. persistently used, not just sporadically. >> certainly. certainly there is speech made from the account that constitute official statements. that does not change the nature of blocking and whether -- >> why isn't this a public forum? >> that goes to the second problem here.
care whether he goes to second or third. , the factst threshold that he is exercising powers that he has in a personal capacity that he will continue to have after he is president. this is not state action. if a private individual were assuming, welude, can that this is a public form. >> this is a position that the president can engage because he can engage in viewpoint discrimination when he's done with president, he can still do it when he's president? >> that's not the case. the question is whether excluding someone from private property would be wielding the authority of the government. it is certainly the case -- a president's private resident, it it would continue be -- >> what kind of form is this? >> is not a format all.
i'm happy to explain why. the fundamental question involved with the form is whether the government had intentionally opened up property, and whether the government had intentionally opened up that property. >> so it could be privately owned property that is controlled by the government, like the southeast promotions case. it's an auditorium that is owned by somebody else. to thevate party leased municipality. they blocked the production of hair and the supreme court said, you cannot do that. even though it is owned by a private party, if you control did,forum which the city your actions are state actions and it's a public forum. how is that different from blocking somebody here? saying we are not going to allow the production of hair in our auditorium even though we don't own it. the supreme court said that the
violation of the first amendment. how is that different from blocking here? twitter is on by somebody else. it's a private action, you claim, of blocking. how is it different from that case? >> we need to analyze who was blocking and in what capacity. separately from what the form is. -- forum is. if there were a problem for him and a private individual were to try to quit -- kick someone out of the form, you wouldn't consider that would be government action. >> i would if it was the president of the united states. >> i don't think that's true. he does many things in his personal capacity. it's a personally owned account or property. such as any of the present -- private residences that have been controlled by presidents during their presidency. they retain their private property rights apart from the presidency. urging us seriously
to believe that the president is not acting in his official capacity when he is tweeting? >> i'm asking you -- >> let me rephrase that. blocking,get to the when he is tweeting, is he acting in his official capacity? >> sometimes, yes. herenk the critical point is that you have to analyze the conduct at issue, the blocking, separately from other things that happen on that property. at the white house, individual actions take place that are not subject to the first amendment. similarly, things happen at mar-a-lago that might be official actions. that doesn't change the fundamental nature -- >> we have a situation where there is a robust, worldwide oflogue on matters transcendent public importance.
what the blocking does, correct subtract wrong, is from that discussion, points of view that the president doesn't like. why isn't that just quintessentially a first amendment violation? >> i take issue with several of the things that were just said. >> go ahead. >> as to the forum point. it's important to keep in mind, all the things that people who are blocked or so capable of doing. >> i know what they are capable of. >> in the case in which they were actually excluded from the space, they would not hear things -- >> that's not a defense to viewpoint discrimination. >> i'm not sure i understand. >> the fact that someone can go down the street and express a a defenseiew is not
to government suppressing particular points of view. in a forum that is public. >> the overall point is that the account is not a forum at all. the plaintiffs have attempted to analogize this to a town hall that has been opened by donald trump intentionally for the purpose of having people responded speech. they have to. >> what's missing? he doesn't have the potential for anybody to respond? >> that's certainly true. this is an account that has been opened up as a platform for his own speech. a more apt analogy is if you think of twitter writ large -- it has been up and up to all the speech of people who are liking and responding. >> that's not certainly true. the knowledge you that i was about to give might help us drill it -- illustrate.
the better way of thinking how twitter works, -- >> we are obviously engaged in a great conversation here as we try to figure this out. have -- addou would five minutes to this for the plaintiffs in the case. >> thank you, your honor. >> if you think of twitter writ large, the entire platform, as a private shopping mall or park, there are many overlapping conversations that happen on twitter. each person uses their account in order to speak into that larger, private forum. the discussions aren't happening specifically on donald trump account. they are happening across twitter in response to what he has said. the best example i can give up this is that the replies themselves are not hosted on his account. if he were to delete a tweet,
the things that people have sent directly to him would exist elsewhere. you could see them on the twitter of the individual account owners who had replied. really, these comment threads are better seen as a record of the conversations that are happening across twitter. when donald trump blocks someone, he's not keeping them from these conversations. >> he's making it a much more difficult for them to access his tweets, though, isn't he? >> yes. >> there are ways to go around this with shadow accounts and other ways on the internet. it still a much more burdensome and not as effective as if you could simply respond to his tweet. a reply to a reply. >> i don't think it's much more burdensome. thisn't that part of point?
if it's the first amendment, it doesn't have to be much more burdensome. if you have to move down the street, that violates the first amendment. >> if it is a forum, it does not have to be more burdensome. the things we have just discussed, people still have access to the greater conversations that are happening. in twitter, it shows that they are not written -- burden from their access to a form. >> assuming that this is a what weorum and that have here is viewpoint discrimination, does the existence of a workaround, it's not a defense to that, is it? under first amendment jurisprudence. >> if this were considered to be an action taken in his official capacity and not his personal capacity -- >> that's a hypothetical. course, viewpoint discrimination would not be
permissible. neither of those two are present here. something conducted in his personal capacity -- >> when you say something conducted in his personal capacity, what does that mean? >> so -- >> in light of the long parade. quite cite you endless -- lengthy lists of examples of what is undisputedly official business being conducted on twitter. >> that's certainly true. we have to look at the what powersature of are being exercised when the president block someone. >> excluding people whose viewpoints he doesn't -- he disagrees with. >> certain individuals do that all the time. >> but they aren't in official. >> we are here because he's not a private individual.
your presence represents the fact that this is a public forum. >> if he was on the street and someone approached him and he walked away from that person, we wouldn't say either that that was a choice or a power he was exercising by virtue of his governmental authority. nor would we say that his choice to walk away was a forum. >> i don't see thou -- how that helps you. >> it helps illustrate the underlying point here. blockedntiff has been from being able to directly reply to donald trump, but they are capable of having conversations about his tweets, continuing to criticize him and engage with everyone else who was talking about what he had to say. they are still part of the overall, privately owned forum. the account itself -- he's not a regulator of the forum. he's a participant. twitter,ticipating in not acting in a controlling way.
he's choosing with whom he is going to engage with and have conversations with. , the physical round, we don't think about those choices as creating a space for a forum. >> the archives has said that areof the -- the tweets official records that must be retained and maintained and presumably find their way to the archives. would you agree that the are entitled to receive the replies and retweets and the likes? i -- i am not an expert in presidential record-keeping laws. i know that the standard is that the president electronic
communications that are related to the constitutional duties of his office must be maintained by the president so they can be passed on to the next president in order to facilitate transitions. i'm not sure whether we would consider things that people expressed to the president on the internet in all circumstances to be within that. record with the likes and we tweets so forth. do you think that the archives request doesn't cover them? i think there is reason to believe that it might not cover them. >> what's your best reason? that seems to make no sense. if the tweet is official public record, -- >> there are many letters, for example, that would be sent to the president. i imagine there isn't a
requirement for the president to keep every letter that has been mailed to him. i don't think there should be a requirement for every single again, i -- >> do you think the president or someone the white house then could go through the accounts and only retain, only turn over to the archives the tweets themselves, do you think that could comply with the archives themselves? >> it's possible. but these decisions are made by white house lawyers and i'm not familiar with how those decisions are made. the archives are handled by the president and the staff themselves. >> thank you. >> thank you, your honor. >> you have reserved three minutes for rebuttal. >> thank you. >> good morning, your honor. jamil jackson for the plaintiff. public officials across the
country now use social media to hear from their constituents. and these social medias often serve the same purposes as forums like city council meetings or school board meetings or town halls. >> fourth circuit facebook is a public forum. is there a material difference between facebook and the twitter account here? >> the platforms are different. i think in individual cases, the plaintiffs can make a come pelling case that a -- compelling case is a public forum. we were council to take this in the fourth circuit case, so we think that case is rightly decided. but i don't think that, you know, it follows from this case or from the district court decision in the case that every public officials' account is a public forum.
i think you have to look at the way the account is used, what resources were used to support the account. >> what factors do we look at then? >> so i think there are three paragraphs of the joicht stipulation here that might be particularly useful to you. one is paragraph 39 which makes clear that the president uses official government resources in connection with this account. other government officials that have access to the account, they draft tweets for the president to post himself. sometimes they propose language that the president posts. it's an account that involves the substantial and sustained involvement or invest of resources by other government personnel. second paragraph 36 of the joint stipulation makes clear ha the government has itself characterized the president's tweets and official statements. and i think we heard the
government do that again this morning but in a variety of context now, the government has characterized the president's tweets as official. the press secretary said that to the press, to the media in a press briefing. the government has said it to various courts including fourth circuit. so there's -- i think there's no dispute that the president's tweets are official statements of the government. >> even if that's true, what do you make of the argument that the blocking function exercise by him is a private function, that everything else might be a ublic forum but the blocking naungs he exercises is a private one? >> i'm not sure that these two things can be separated in that way, your honor. the only reason that the president is in a position to block people from a public forum is that he is the president. there's state action in the creation of the account.
>> no, he's owner of the twitter account. and therefore he can exercise that control because that comes with his ownership. >> that's right, your honor. that comes with his ownership. the government says that while every owner of a twitter account is in a position to block in the same way that the president is, i think that that argument ends up proving too much because it's also true that the owner of private property is always in a position to exclude people from there private property. but that doesn't stop us from saying when a city council excludes someone from the estimate council meeting that he or she was acting in their official capacity. the president established this account in his official capacity. not only is it impossible to separate the blocking from the establishment of the account, but even if you focus on why the president -- >> i thought he started the account in 2009. isn't that stipulated too? >> i -- you're right.
he started it before he was president. he began using it as president as an extension of his office. and once he began using it in that way, it became a public forum. at that point when he blocked people in his account he was acting in his official capacity. if you look at why these particular plaintiffs were blocked, one of them were blocked after he complained about the president's ill gration policy. another because of health care policy. another one was blocked with president's policy with respect to ush yeah. even if you focus myyopically the reasons, they were blocked for having criticized the president about his policies or criticize the president's decisions as president. i guess the other thing that might be worth pointing out -- >> therefore it's the president blocking not donald trump private citizen blocking.
>> your honor, i don't know another case -- >> that was the question, sorry -- >> right. i don't know any other case in which a public official has established a public forum and then excluded somebody from the public forum and the court has said the exclusion was done in the private capacity where the public forum was in a governmental capacity. if there's a case like that, i don't know of it. it doesn't seem reason to believe separate these two in the same way. >> the other thing that was pointed out the bush ranch in texas. those are private areas even when the president is there. can't the president exclude people from those properties? >> absolutely, your honor. it would be a different thing if tomorrow president trump said i'm going to host a meeting at or an open forum at mar-a-lago. anyone who wants to come can come. i'm going to make official announcements relating to my
presidency. i'm going to disclose our new policy with respect to north korea at this forum. it's an official -- he describes it as an official forum. it's open to everyone. he decides at the last minute to exclude people who disagree with him. it seems to me that would be a violation of the public forum -- >> that's because he said it's open to anyone. but what if he has implicitly said it's -- it's really only open to people who are my supporters. >> then i would think you're talking about a different kind of case, your honor. >> why isn't that this case? >> because the president didn't say that initially. he opened this to everybody. there are 50 million followers to this account. there are -- there are cases -- , defacto ng done that and a jury having said about who can participate, he has no ability then to limit this forum
that he has i'll say unwittingly -- i'm not sure it is, but unwittingly created. >> on the basis of viewpoint. now if the president decided that he wanted to institute some viewpoint neutral time place and manner restrictions on this account, i don't think those would necessarily raise first amendment concerns. the reason this case raises those concerns is that the president block these individuals because they criticized government policy. and that is stipulated. the parties have stipulated to that. i just want to point out one consequence. >> just so i have it -- where is that in the stipulate, do you remember? and if you don't, don't worry about it. >> first paragraph of the stipulation. on this issue of blocking versus the establishment of the forum, i think it's worthwhile to consider the implications of the government theory there. if the court were to hold that
this kind of blocking is beyond the reach of the first amendment, that would have implications far beyond this particular context. it would seemingly apply to the@potus account, to the@white house account. it would apply to every government website that has comment, you know, space for public comment. i think you would be opening the door to distortion and manipulation of those spaces as well if you were to accept that deadline of our unit. could the president block antisemitic material from tweets? >> i think that -- >> i think rabidly racist material. >> if the policy were viewpoint neutral then i think that the first amendment might permit it. i think you have to analyze --
>> anti-semitic. > i think probably yes, your honor. i think you have to ask -- the way the court hazardsed the limitation, the limitations that were imposed in the first instance. the court has asked if those limitations are viewpoint neutral and whether they are necessary to facilitate the operation of the forum. so if you look at case like -- at a case like forbes for example which involved the public broadcaster that excluded somebody one candidate from a public debate, the court asks whether the limitations that the public broadcaster had placed on this particular space were viewpoint neutral and consistent with the purposes of the forum. i think that's the analysis. i don't -- you know, i don't know that i know the answer. the ultimate answer to the question, judge parker, but i think that's the way the court
would analyze id. it would be different because we're stipulating that it's not viewpoint neutral. >> could i ask you about a decision of the discourt. that is the discourt found that first order replies were in the public forum. you maintain that -- the whole thread is within the public forum. why is that? if the president is not involved to replies and retweets that other people are doing in the threat. >> well, i think it's because that while the president doesn't have direct -- direct control over what we might call sir replies, replies to replies, the president's decision to block somebody from his "has an effect on that person's ability to participate on the same terms as other users at that level some of for example if somebody's been blocked from the president's account, you don't see replies to the president's tweets unless you follow the
replier already independently. and even if you see that reply because you follow that person independently already, you don't see the tweet, the president's tweet that initiated the whole chain. and so your ability to participate on the same terms as other users, you don't have the ability to participate in the terms as other users in the common threads. ultimately i don't think it makes a difference -- >> even though electronically by micro seconds. you probably could put yourself in a position to do that. >> you're right that there are workarounds. the workaround involve the time and burden and that's sufficient establish a first amendment issue here. i assuming it's a forum. ultimately, i don't think it matters whether the district court is right about the scope
of the forum or we're right about the scope of the forum because even on the district court's view our plaintiffs were excluded from a public forum. and maybe there's a dispute about what the scope of the forum is, but the relief is the same -- >> you did not dross point? >> we did not. >> we need to reach it -- >> i don't think we need to reach it. the ultimate relief would be the same. >> judge hall, you asked the question. you just said if it's a public forum -- i don't think the outcome of this case would be any different even if it weren't a public forum because of our two other claims. even if this is not -- once you get the state action, once you've established that this account reflects state action, then even if there's no public forum involved, the president has excluded the plaintiffs from
a channel used to disseminate official government information and he's excluded them for no reason other than viewpoint. he's excluded them from a channel available for the public for petitioning the public for addressing grievances and he's done it again other than viewpoint. so i think that we've litigated this point to the public forum case because the public forum case file seems to fit very naturally with what -- what the president's twitter account is. but even if it weren't a public forum, i think that the government would have the same first amendment obstacle to the argument that it is. >> so if we have a concern about or choose to avoid analyzing whether it's a public forum -- sorry, we'll find hypothetically that it's not a public forum. but we need to send it back to the district for analysis?
>> no, we have joint stipulations where the parties have set up the facts. the parties have briefed the legal question fairly comprehensively. so you can reach those. i don't want to dissuade you from reaching the public forum question that's the most natural body of law or the body of law that applies most naturally. you know, the only question you really need to answer, again, one state action is out of the way. the only question you need to answer is this a space that opened up to the public at large for expression? and i think that question is easy to answer because the whole point of twitter is to cilitate interaction between user to facilitate communications. if the government had wanted a one-way channel it could have used the blog or it could have issued for frequent press
releases, but instead the president used the twitter account. and twitter is a social media platform because it allows people to respond to users and to respond to one another. i think that the question about, you know, whether the president intended to establish a forum is again relatively easy to answer. >> thank you. >> if there are no further questions, i'll rest with our papers. >> thank you. you tried to reserve three minutes for rebuttal. >> thank you, your honor. first, we do believe that the threshold question that should be answered before addressing whether this is a forum or any of the plaintiff's other arguments. and i believe that the answer -- >> because if it's not state action it's not a forum? >> if it's not state action, if it's action by a government official in their personal capacity cannot violate the constitution.
we've seen that in 1983 cases and the like where actions by people who are government officials who are acting in their official capacity do not violate the constitution. >> when you say that is the capacity in which the president is operating in this case? >> the president when he blocks individuals from his personal twitter account is not exercising official action or wielding the power of the state in the same way -- >> sorry, when you say the president, i want to say -- is the president himself actually entering the blogs? >> that is stipulated that donald trump himself is the person who blocked -- >> >> not anybody working for him? >> that's correct, your honor. >> in the same way that for example if a president or any other public official were to
exercise private property control. we're not talking about a situation where there's a meeting or something that has been open or someone has said i would like you to come talk with me and share your thoughts. we're talking about a situation where there's a blanket statement i don't want you on my control. >> you have said that he was assisting president trump in the tweets historically since he's been president, right? you're saying he wasn't involved in block at all, is that what you're saying? >> the stipulation clearly states that donald trump is not danny scovino. many of the difficult questions about state action are sort of assuming the forum question, which is that the government has intentionally invited people to express disagreement, criticism, compliments whatever the example was given of the davis and
fourth circuit page in which the facebook at issue was created and the government official said that the government page was created in order to hear from the constituents. there was a clear and open invitation for this by contrast. donald trump account has always been used as a platform for his own speech. what plaintiffs would like to do here is reply directly to him. they would like to sort of use that account in order to amplify their own voice. but as we know from the minnesota board of community colleges that's not a right protected by the first amendment. >> but you could see that some proportion perhaps a significant proportion of -- the tweets are in his official capacity? >> that's true, yes, your honor. >> so could he block responses to tweets that emanated from his official capacity? >> twitter does not allow users
to parse their tweets in that way. they have essentially two choices. they can either protect their tweets which is they can only be seen by people they have agreed to be seen, which of course, would limit the amount of people, the audience for the tweets as well as the amount of people who could reply or they could have tweets be visible and accessible to every member of the public including those who don't have twitter accounts as donald trump has chosen to do here. but once that choice has been made, there's no ability to pick for example who can respond to a certain thing or to as plaintiff suggested limit hate speech in one way. you either allow people to respond or you do not. >> why doesn't that answer our question if that's the -- the nature of the debate, how can you possibly consistent with the first amendment exercise blocking power? >> well, because blocking power
does not keep plaintiffs from a forum. blocking power keeps plaintiffs to donalding directly trump. >> pushes plaintiffs into workaround -- you block use -- >> it pushes plaintiffs into a -- if they would like to speak directly to donald trump through his at will donald trump account. but the -- that's not protected by the first amendment. >> you see the replies, right? >> the replies are available on twitter at large, the search function would show the replies, the individual repliers' pages -- >> that takes some additional effort to do that. >> it takes the same amount of effort that would gould go to repliers' page. in either case it's one step. there are still free to converse with other people because the forum here if we want to talk about it that way is twitter and
not his page. >> and why are we -- why are we imiting ourselves to that? walk me through how you get there because that's at the core of what -- >> i think the stipulated fact shows different ways about the way twitter works. first that the replies themselves aren't hosted on donald trump's page. they're hosted on the broader twitter universe. second, the plaintiff has full access to everything that everyone has said to donald trump in the broader twitter universe. the comment thread there's a record of conversations that are happening and we know that most of the plaintiffs have continued to participate in these conferses if they have been excluded from a forum, none of that would have been true. the plaintiff access to information and petition claim again this information is
available fully to every member of the public with or without a twitter account and of course, the right to pe petition doesn't give you the right to talk to any public official with any manner that you want with the right to protect is the ability -- it protects you against public officials punishing you for participation. and that simply hasn't happened here, criminal penalties, financial penalties, the sorts of things that we see in rights of petition cases. thank you, your honor. >> thank you, both. well briefed. well argued. safe travels back to washington. thank you all. i will ask the clerk please to adjourn court. >> the court stands adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2019] >> coming up live friday on c-span, the speaker of iraq's newly elected parliament on
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